Notes on Collaborative Divorce
—Douglas Kneller .. ifloridadivorce.com .. daytonadivorce.com
To be successful in a Collaborative Divorce, you must be mature, intelligent, respectful and capable of listening.
Collaborative Divorce is certainly not for everyone. It can be appropriate for certain individuals and an exercise in futility for others. Occasionally, I meet with clients who capable of a respectful, fair and productive dissolution of marriage. What they want is to avoid a resolution that is mandated by a judge or by laws passed by the legislature, arguments, appeals, acrimony.
Having participated in many collaborative negotiations, I know first hand the trust and dedication, diplomacy and organizational skills required of all parties. If there is not the sincere desire to put the children first, to arrive at a fair division of assets, and the commitment to working together toward an amicable and (possibly) speedy resolution, collaborative divorce may not be possible for you.
A successful, collaborative divorce is possible when all parties are calm, emotionally stable, organized and committed to sitting down at the table with an open mind. Individuals will have done their homework, established clear objectives for themselves, and have amassed the financial documentation needed to move forward.
Even with the best intentions, there is no guarantee that the outcome will be successful. I've seen couples walk away from the table with a square deal and their self respect intact. I have also witnessed negotiations that fall apart. Sometimes the talks can be restarted, but there are instances when the process must be abandoned and couples have to resort to other measures to dissolve the marital contract.
A successful collaborative divorce can give mature individuals some degree of control and autonomy and potentially, cut down on legal expenses. These individuals are able to maintain their composure and come to an equitable agreement, mostly on their own terms.
A good collaborative attorney is trained to make the process work. It works without excessive ugliness, arguments and accusations associated with traditional divorce. He/she is an effective, negotiator and forthcoming with creative strategies tailored to the interests of the client. The role of attorneys in a collaborative divorce is not adversarial. A skilled negotiator will be able to facilitate a fair and positive resolution. Choose your attorney who has the right temperment!
The signing of a Participation Agreement is the first step in collaborative divorce, whereby your attorney commits to helping you and your spouse reach a settlement outside of the courtroom. This is what makes a collaborative divorce different from traditional divorce proceedings.
Note: In the event that your attorney is unable to resolve your issues out of court, he or she is legally required to withdraw from your case. It's important to note that if the attorneys cannot settle your case collaboratively, they cannot represent you in future divorce proceedings.
Essentially, collaborative divorce is a four-way meeting between a divorcing couple and their respective attorneys, with all parties sharing the common goal of negotiating a settlement of all of the issues in your case.
To facilitate the collaborative process, the expertise of independent "neutrals" is often called upon. A competent mental health professional is hired to facilitate a couples' communication and assist in discussions regarding the best interest of your children. A qualified financial advisor is hired to identify and value assets and debt and to determine actual income and other relevant money matters.
Most of the work falls on the divorcing couple who are responsible for documenting the financial aspects of the marriage (and more). Prior to meeting, they will have already soul-searched, built trust through communication, made provisions for the children, and devoted considerable time to the gathering and organization of financial information, including:
• bank and/or asset statements
• business interests
• savings and retirement accounts, funds, pensions
• appraisals or market analysis of real estate holdings
• bluebook valuation of cars, boats, recreational vehicles, timeshares
• insurance policies
• itemized lists of household goods to be divided
• a budget
• childcare schedules and education
If you somehow lose your head and negotiations fail, obviously you will have spent considerable time and money without arriving at an agreement. You can opt to restart the negotiations or you can go to court.
But if you are mature, intelligent, respectful and capable of listening, and you have two attorneys who are professional and understand their roles in collaborative divorce negotiations, it can be a win/win with your spouse and for your family.
Competent representation is essential. There are many attorneys do not understand collaborative divorce and are reluctant to consider it an option. I suspect they are afraid to give up control and are afraid of getting along versus engaging in battle.
Ask your attorney about this process. If he or she is unable to answer your questions, you may not have the right attorney.
Pros and Cons of Collaborative Divorce
• The emphasis is on settlement.
• A coordinated search for good legal representation rather than declaring war on your spouse; commitment of attorneys to reach a settlement.
• The desire for an amicable, creative, productive and less wasteful dissolution of marriage without going to court.
• Avoiding the unpredictability and uncertainty of the courts; avoid court dates and preparation.
• Damage control for children. Potentially less stress.
• Avoiding a resolution that is mandated by a judge or by laws passed by the legislature; arguments, appeals, acrimony.
• Avoiding aggressive attorneys and courtroom battles; humiliation.
• A reasonable option for individuals who have already gone their separate ways and want to put the past behind them; signing papers is a formality.
• Fewer surprises, clearer objectives, effective negotiations, reasonable expectations of outcome from the very beginning; some certainty about what you want and what you are likely to receive.
• You may end up with a better deal; preserving dignity and respect for your spouse.
• The goal is to reach an agreement in a relatively short amount of time.
• Potential savings on legal fees and court costs.
• Collaborative divorce is not an option for angry people or control freaks.
• Getting your spouse to play nice.
• You may have regrets about the agreement you signed which you initially thought was reasonable.
• Uncertainty, disagreement or conflict may not be resolved as easily as hoped.
• If you are unable to sign an agreement, in the end you'll have spent your money unwisely and find yourself back at square one; possibility of restarting negotiations; possibly going to court (which you were trying to avoid in the first place).
• Not all attorneys are experienced or skilled in collaborative divorce negotiations.